Arrears in Courts:
Measures to Contain them
T. KocHu THOMMEN*
INTRODUCTION
Arrears are a common feature of organised administration
in modern society. In an ever expanding society with ever increasing demands on the administration, which in various ways
controls and regulates the activities of men, particularly in a
welfare State catering to the needs of its multitudinous popular
tion, the law of demand and supply explains the cause of arrears.
Arrears heap up as supply of service cannot cope with the demand. This has become the distressing phenomenon of the modern administration, particularly in the executive branch of the
Government. This paper is however concerned with the judicial
branch where the problem, though not as grave in comparison
to the much busier executive branch, requires speedy and immediate attention as justice cannot brook delay.
Arrears in courts are far more complicated to tackle than
arrears in the executive branch. By the very nature of the judicial work, speedy administration of justice is not a simple problem of hurried disposal of cases. Speed without care and caution
can be the very antithesis of justice, as the notorious Captain
Lynch of Virginia (c. 1780) has strikingly demonstrated. At the
same time, it is but a truism that justice delayed is justice denied.
Cases must be disposed of with 'all deliberate speedy' which
M.A., LL.D., of Lincoln's Inn, Barrister-at-Law; Judge, High Court
of Kerala; Dean, Faculty of Law, University of Cochin.
The opinions expressed in this paper are those of the author and
do not necessarily reflect the views of the High Court or of the
Faculty of Law.
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R83
means that while measures are adopted to dispose of cases as
quickly as possible, each case has to be dealt with as cautiously
and carefully as it deserves. It is indeed a difficult and delicate
problem of balancing between the vital need of the society to
liquidate arrears in courts for the smooth functioning of the machinery of justice and the equally vital need to do justice to the
parties in each case according to law. While modern techniques
such as electronic devices and the like and the expertise of
specialists in management and public administration can be of
immense help in containing arrears, in the final analysis the problem admits of no easy solution for cases will continue to pile
up so long as there are courts to hear them, whatever be the
structure of the courts and the procedure they adopt. This has
been the universal experience of both the common law and the
civil law system of judicial administration. Law's delay has been
a proverbial problem throughout the ages, and no machinery
that democratic society has so far devised has been able to come
to grip with it with absolute success. All that one can in humility
aspire to do is to ward off this perennial dragon as best as
possible and with due regard to the conflicting interests involved.
Another complicating factor is the inbuilt deficiency of the judiciary which has no purse of its own. Lack of primary facilities,
such as typewriters, copying machines—not to mention electronic
devices such as computers—congenial buildings to house courts,
sufficient number of stenographers and other staff, and the like,
are too well known to us in this country to require special description. Denial of these facilities to the courts is one of the
prime causes of arrears. In this paper, 'however, I shall limit my
discussion to a different aspect of the problem, namely, the jurisdiction of courts with special emphasis on the Supreme Court.
While the Constitution of India has established a federal
structure with a dual polity in which the legislative and executive
powers are divided between the Centre and the States, each
being sovereign in the constitutionally assigned sphere, yet in the
domain of administration of justice, the Constitution has adopted
a unified system governed by a hierarchy of courts with the
Supreme Court at its head, being the last court of appeal and
invested with original jurisdiction in certain important matters;
and below it the High Court, having administrative control over
T. KOCHU THOMMEN 123
all the subordinate courts subject to its appellate jurisdiction, and
power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
Governed by a written Constitution which is the supreme law
of the land, the three branches of Government (organs of State)
—the legislature, executive and judiciary—are subject to the
absolute supremacy of the Constitution. For the smooth functioning of the Constitution, it is essential that the co-ordinate
parts of the Government at the Centre and the States faithfully
perform their constitutionally assigned roles and confine themselves to their respective domains. While our Constitution has
avoided the rigid and literal application of the classical theory
of separation of powers, it has nevertheless drawn clearly and
broadly the structural and conceptual distinctions between the
three. branches. Indeed the distinctions are fundamental to any
form of democratic Government—whether in a federal or unitary State or whether governed by a written Constitution or not
—as otherwise the concept of law will itself scarcely survive.
It is the paramount interest of the Supreme Court to protect
and preserve the harmony of the Constitution through an enlightened and purposive construction of its provisions. The integrity, growth and security of this nation as a federal democracy
depend to a large extent on the smooth and faithful operation of
the Constitution by those entrusted with special responsibilities
under it. The Constitution has empowered the Supreme Court
and the High Courts to nullify any legislative or executive transgression—either at the Union or the State level—caused by deviation from the constitutionally or statutorily assigned orbit or
by violation of the basic norms of law. This august responsibility
of keeping watch is a constitutional mandate to the superior
courts. But the ultimate interpretation and application of the
fundamental law of the land lies in the hands of the Supreme
Court. This is a special responsibility of supreme importance requiring, for its effective fulfilment, a deep and penetrating appreciation of the political, social and economic problems of this
country and an imaginative vision of the dreams and aspirations
of its people. This is a task which requires, in the words of
Justice Frankfurter, "poetic sensibilities" and "gift of imagination" to "pierce the curtain of the future" and "give shape and
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visage to mysteries still in the womb of time."' in this sense the
judges of the Supreme Court are prophets and statesmen playing
a vital role in moulding and shaping the destiny of this nation.
This is a function which requires immense study and contemplation. No case which is not of vital importance to the
fundamental concept of freedom and justice and the integrity and
development of this nation is of interest to the Supreme Court,
whatever may be its particular importance to the concerned
litigant. The Supreme Court is not as much concerned with the
individual interests of the parties in a litigation as it is with the
ultimate impact of the result of that litigation upon society. As
the highest court of the nation, it is concerned mainly with the
harmonious growth of our dual polity and with the promotion
of justice, liberty, equality and fraternity. It is this attribute of
enlightened aloofness that distinguishes the Supreme Court from
the rest of the courts in the hierarchy.
It is reported that over 40,000 cases are now pending in the
Supreme Court and that it takes over a decade on an average for
a case to be disposed of. This is far too heavy a load for any
court to bear, and much more so at the level of the Supreme
Court where innumerable problems of the greatest importance
await the consideration of that Court. It is necessary to examine
the cause of these arrears before measures to liquidate them are
considered. I shall now briefly examine the judicial power conferred on the Supreme Court.
J URISDICTION OF THE S UPREME C OURT
The Supreme Court of India is perhaps the most powerful
court in the world. No other country—whether in the "common
law" or the "civil law" system—appears to have an apex court
invested with such wide and sweeping powers. The Supreme
Court of India, unlike the British House of Lords and the U. S.
Supreme Court, has original jurisdiction to enforce fundamental
rights (Article 32). Like the U. S. Supreme Court, it has original jurisdiction in disputes arising between the Centre and the
1. Of Law and Men (1956).
T. KOCHU THOMMEN
125
States or between States (Article 131). It has jurisdiction to
grant special leave to appeal from any "judgment, decree, determination, sentence, or order in any cause or matter passed or
made by any court or tribunal in the territory of India". (Article
136). This is an appellate power of the widest amplitude capable of bringing within its judicial reach any decision in any
matter made by any court or tribunal in the country. Apart
from the self-imposed restraints, there is no constitutional fetter
of any kind on this power. Neither the House of Lords nor the
French Cour de Cassation has a comparable jurisdiction. Nor
is the Certiorari jurisdiction of the U. S. Supreme Court or the
appellate power of the French Conseil d'Etat as wide or as farreaching. In additions to these powerful weapons, the Supreme
Court has in its armoury appellate power in civil, criminal or
other proceeding where the concerned High Court has certified
that a substantial question of law as to the interpretation of the
Constitution has arisen (Article 132); or in a civil proceeding
where the High Court has certified that a substantial question of
law of general importance has arisen (Art. 133); or in a criminal proceeding where the High Court has reversed an order
of acquittal of the accused and sentenced him to death, or has
withdrawn to itself the trial of a case and has in such trial convicted the accused and sentenced him to death, or has certified
that the case is a fit one for appeal to the Supreme Court (Art.
134). Parliament is empowered under Art. 134(2) to confer by
law further power on the Supreme Court to entertain appeal
from a judgment, final order or sentence of a High Court in a
criminal proceeding, subject to such conditions and limitations
as Parliament may specify. 2 Parliament is also empowered
under Art. 138 to confer further jurisdiction and powers upon
the Supreme Court in respect of any specified matter in the
Union List, 3 or, any other matter which the Government of
India and the Government of any State may by agreement confer
upon it and for which Parliament may by law provide.
See the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, by which Parliament has widened the jurisdiction
of the Supreme Court.
See, for example, the Income-tax Act, 1961 and the Representation
of Peoples Act, 1951.
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Parliament is further empowered to confer upon the Supreme
Court Writ jurisdiction in matters other than those relating to
fundamental rights (Art. 139). The Supreme Court has power
to withdraw to itself certain cases pending before a High Court
or transfer them to any other High Court (Art. 139-A). The
Supreme Court has anciallary powers under Art. 140 for the
effective exercise of its jurisdiction. The Supreme Court has jurisdiction to enquire into and decide upon disputes relating to the
election of the President and the Vice President (Art. 71). The
law declared by the Supreme Court is binding on all courts in
the country (Art. 141). Any decree or order passed by the
Supreme Court is enforceable throughout the territory of India
(Art. 142). Civil and judicial authorities in the country shall
act in aid of the Supreme Court (Art. 144). The Supreme Court
is invested with certain advisory jurisdiction under Art. 143. It
has also power to hold an enquiry and report to the President
of India in the matter of removal of a Member of the Public
Service Commission (Art. 317). It is the wide sweep of these
powers coupled with the litigiousness of our people that may
have accumulated over the years the largest arrears that any
apex court anywhere in the world has on its hands. The crushing weight of over 40,000 dockets is far too much for any court
to bear. If they are not liquidated and ways are not devised to
prevent further accumulation of arrears in the future, the Supreme Court would sooner or later find itself incapacitated to
discharge its constitutional obligations and the public will begin
to lose their faith in the efficacy of that institution. That will be
the greatest blow to the rule of law in this country. What is the
answer? Is it not time for the court to shed its excess weight
and recoup strength?
COMPARISON WITH OTHER COURTS
It may be of interest in this connection to examine briefly
by way of comparison the jurisdiction and authority of the
highest courts in the United States, United Kingdom and France.
Such comparative study might throw some light on the problem
of containing arrears in the Supreme Court of India.
T. KOCHU THOMMEN
127
The United States Supreme Court has original and appellate
jurisdiction, although the former is limited and sparingly exercised. It has "original and exclusive" jurisdiction of controversies
between two or more States. It also exercises concurrently with
the Federal District Court original jurisdiction over cases involving foreign ambassadors, other foreign public ministers and consuls, and subject to the 1 1 th Amendment of the Constitution,
over cases in which a State is a party. It would appear that during the period from 1789 to 1974, the Court, (apart from
"memorandum orders" which merely say "affirmed" or "reversed" or "dismissed" or "vacated"), had not rendered decisions in 'exercise of the original jurisdiction in more than 155
cases.4 The appellate jurisdiction comprises three categories of
cases: (1) the regular appeals which reach the Court as a matter
of right; (2) Writs of Certiorari; and (3) appeals by way of
certification. The last of these categories is so rarely employed
that it hardly needs mention. The certification relates to "any
question of law in any civil or criminal case in which instructions
are desired" by the lower court. The two principal categories
comprising the appellate jurisdiction of the Supreme Court are
cases involving constitutional questions or cases arising under
Federal law or Federal treaty.
On regular appeals cases reach the U.S. Supreme Court
as a matter of right from (1) the State court of last resort when
the latter has declared a Federal law or a Federal treaty or
provisions thereof unconstitutional, or it has upheld a State law
or a provision of the State Constitution against a substantial
challenge that it conflicts with the Federal Constitution or
Federal law or Federal treaty or any provision thereof. (2)
Appeals also reach the Supreme Court from the U.S. Court of
Appeals 5 (known until 1948 as Circuit Court of Appeal) when
a State law or a provision of a State Constitution has been invalidated on the ground of conflict with a Federal law or Federal
treaty, or a provision of the Federal Constitution, or when a
Federal law has been declared unconstitutional in a suit to which
Henry J. Abraham, The Judicial Process (1975), pp. 170, 171.
The "U.S." Court, as distinct from a State Court, is a Federal Court.
This is based on the dual system of judicial administration.
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the United States or one of its instrumentalities was a party.
Appeals can also reach the Supreme Court from the U.S. District Court when a Federal statute has been held unconstitutional,
or where the United States is a party to a civil suit under the
Federal inter-State commerce, communication or anti-trust laws..
Appeals can be taken from a special three-judges U.S.
District Court which has granted or denied an interlocutory or
permanent injunction in any proceeding required to be heard by
such a court, i.e., proceedings relating to the enforcement of
Federal or State statutes or orders of State administrative agencies alleged to he unconstitutional or involving inter-State commerce questions. (5) Appeals will also lie from any Federal
Court including the Court of Claims or the Court of Customs
and Patent Appeals, when a Federal statute has been held unconstitutional in any civil action in which the United States or
one of its instrumentalities was a party. It is thus clear that
appeals which can be taken to the United States Supreme Court
as a matter of right are confined to cases involving constitutionality of statutes or orders or cases arising under Federal
inter-State commerce, communication or anti-trust laws. Such
appeals can arise only from a State Court of last resort or from
a Federal Court.
Ninety percent of the cases decided by the U.S. Supreme
Court reach it by way of petitions for Writs of Certiorari. These
petitions, unlike the regular appeals, are admitted, or rejected
in limine, at the discretion of the court. Cases in which Writs
of Certiorari are sought arise from (1) the State Court of last
resort in all matters other than those which are appealable as
of right, provided a "substantial Federal question" has been
raised. (The Federal questions are those which relate to the
Constitution, laws and treaties of the United States). Such cases
also arise from (2) the U.S. Court of Appeals, or, (3) from
the Court of Claims, or, Court of Customs and Patent Appeals,
when a decision involves the application or interpretation of a
Federal law, Federal treaty, the Federal Constitution, or provisions thereof, or where the U .S. Court of Appeals has upheld a
State law or a provision of the State Constitution against a
challenge that it contravenes a Federal law or a Federal treaty
or the Federal Constitution or the provisions thereof. It is im-
T. KOCHU THOMMEN
129
portant to note that petitions for Writs of Certiorari are admitted (the expression is "granted" indicating that the court has
agreed to call for the records for the purpose of review) only
in cases arising from the State Court of last resort, or the U.S.
Court of Appeals (and in specified cases from the U.S. Court of
Claims and the Court of Customs and Patent Appeals) and
involving substantial federal questions, and particularly the constitutionality of statutes.
Even in cases specified above, the discretion of the Court
is wide enough to limit certiorari to matters of importance to
the operation of the federal system. According to Rule 19 of the
U.S. Supreme Court Rules, petitions for certiorari are admitted
only "when there are special and important reasons therefor."
These are: (1) where conflicting decisions are rendered by U.S.
Courts of Appeals or three-judge District Courts; (2) where a
State Court or Federal appellate court has decided on an important question of Federal law on which the Supreme Court
has not expressed itself; (3) where a State Court or a Federal
Court has rendered a decision in conflict with the decisions of
the Supreme Court; and, (4) where a Federal Court has deviated
from well established rules of judicial proceedings. To sum up:
no regular appeal or a petition for a Writ of Certiorari will lie
except in cases calling for the judicial review of constitutionality
of legislation or administrative orders, or, the application and
interpretation of a Federal law or Federal treaty or the provisions of the Federal Constitution. Such cases can arise only from
a State Court of last resort or from a Federal Court.
Although the regular appeals reach the U.S. Supreme Court
in specified cases as a matter of right, very few of such cases
ultimately succeed in upsetting the lower court judgments. In
1972-73, for example, 91.3% of such appeals were dismissed.
Half of them were dismissed "for want of a substantial Federal
question" and the balance on other jurisdictional grounds. As
regards petitions for Writs of Certiorari, the admission of which
is entirely in the discretion of the court, about 85 to 90% are
generally rejected in limine; and no reasons are given for such
rejecteion except perhaps in one per cent of the cases. At least
four of the nine justices must vote for a petition for certiorari •
to be admitted. There is no oral hearing at the time of admission
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of certiorari petitions. As a working rule adopted by the Court,
the same number of judges must 'note probable jurisdiction' on
regular appeals. This is an important practice devised by the
Court to check docket explosion, despite the theoretical distinction between regular appeals and Writs of Certiorari. Six justices
constitute a quorum to hand down a decision. Where the voting
results in a tie, the lower court decision remains undisturbed.
In 1972 the study group appointed by the Chief Justice to
examine the problem of arrears in the U.S. Supreme Court observed that the work load was rising to a level far beyond the
capacity of the justices to satisfactorily deal with the cases selected for hearing. There were 4371 cases pending in the U.S.
Supreme Court in 1972 6 (compared to the 10846 cases pending
in the Supreme Court of India at the same time). The need to
check the rising tide of docktts is constantly in the minds of the
justices. This sentiment is eloquently expressed by Justice
Frankfurter:
44.
[It] carries with it the responsibility of granting
review only in cases that demand adjudication on the basis
of importance to the operation of our federal system; importance of the outcome merely to the parties is not enough."7
This attitute of "alert deference" to lower Court opinion in
general is best brought out in the following illustration given by
Justice Frankfurter as what a Chief Justice might say:
"This is a very interesting and important question . . . . , but
we can't do any better than Judge Julian Mack did with it
below. He really knows more about this field of law than
the rest of us. I suggest we deny this petition for certiorari."8
This is what Chief Justice Vinson meant when he said:
"(the Supreme Court) is not, and never has been, primarily
concerned with the corrections of errors in lower court
See C. Herman Pritchett, The American Constitution (1977) p. 98;
Rajeev Dhavan, The Supreme Court Under Strain, (1978) p. 148.
Wilkerson v. Mc Carthy, 336 N. J 53 (1949) as quoted by Henry
J. Abraham, The Judicial Process, pp. 175-176.
As quoted by Henry J. Abraham, id., p. 176.
T. KOCHU THOMMEN
131
decisions . . . . (Its) function is, therefore, to resolve conflict of opinions on Federal questions of wide import under
the Constitution, laws and treaties of the United
States. .. "9
It is by strict adherence to this theory that the lower court is
the final authority, except in the most exceptional cases, that the
Supreme Court of the United States manages to ward off mounting arrears to remain what it is intended to be under the Constitution, viz., a Constitutional Court protecting and preserving the
structure, balance and harmony of the federation and its laws.
In England an appeal lies to the House of Lords in civil
and criminal matters with the leave of either the Court of Appeal
or the House of Lords itself. The House of Lords has no original
jurisdiction. Nor has it jurisdiction to hear appeals from any
court other than the Scottish Court of Session, the Supreme
Court of Northern Ireland and the English Court of Appeal
(Civil and Criminal Divisions) and from the High Court in the
rare cases which 'leapfrog.' (These are matters, provided under
the Administration of Justice Act, 1969, where appeals are
directly taken from the High Court with the agreement of parties
and on a certificate by the trial judge, or where the trial judge
certifies that the case involves a point of law of general public
importance which relates to the construction of an enactment or
is one in respect of which the judge is bound by precedents laid
down by the House of Lords or Court of Appeal). Except in
these specified cases no appeal lies to the House of Lords. It
has no power comparable to what the Supreme Court of India
has under Art. 136. In 1968, 52 cases were presented to the
House of Lords, out of which 33 cases were disposed of by
allowing 13 of them and rejecting the rest. o _That apex court
does not face any comparable problem of docket explosion. The
Judicial Committee of the Privy Council has lost much of its
jurisdiction owing to the severance of the former colonies from
the British Empire and no special mention of that Court is required as it has no problem of docket explosion.
Address to the Annual meeting of the American Bar Association, St.
Louis, 1949—as quoted by Henry J. Abraham, ibid., p. 176.
See Blom-Cooper & Drewry, Final Appeal, (1972) pp. 42, 43.
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In the United States, unlike in India or England, all the
judges of the Supreme Court sit en bane. While this has the advantage of the whole court concentrating its attention on every
case and thus avoiding the possibility of divergent judgments,
many judge-hours are spent in the hearing of arguments and the
study of papers. In the House of Lords there are 11 Lords of
Appeal in the Ordinary and certain other peers who hold or
have held high judicial office. All of them do not generally sit
together in one case, but as committees of 5 or 3 members. The
practice of the Privy Council is also roughly the same. Unlike
the Supreme Court of India or the House of Lords, cases very
rarely reach the U.S. Supreme Court on certificates by the lower
court. In the United States, unlike in the Supreme Court of India
or the House of Lords, applications for leave to appeal are decided by the Court without oral argument, but on papers alone.
"Briefs," as they are known in America, are alien to the British
system. A brief is a written argument running into 50 or often
more printed pages prepared at considerable cost. The facts and
the law, the alleged errors, the appellant's arguments are all fully
stated. Unlike in England or India oral argument is severely
limited in the United States. The maximum time generally
allowed to each side in the U.S. Supreme Court is one hour and
much less in many appellate courts in that country. It is important to remember that oral argument is permitted only at
the time of final disposal of cases selected for hearing. The
average duration of argument in the Court of Appeal in England
is a day and a quarter per case, and about three days per case
in the House of Lords and in the Privy Council. In England or
India the judges study the cases mostly by listening to the oral
submissions of counsel at the bar. The appellate judge in England
or India 'spends most of his working time in open Court, whereas his counterpart in the United States spends most of the time
in chambers where he has a great deal of papers to read. While
a British Judge, like his counter-part in India, hears arguments
both on the forenoon and afternoon of each working day througout each term, an appellate judge in the United States does not
sit longer than one week a month, and probably less in the U.S.
Supreme Court. The appellate judges in the United States have
the assistance of law clerks. Three law clerks are attached to
each justice of the U.S. Supreme Court. They are chosen by
T. KOCHU THOMMEN
133
and are answerable to the judges, but they are paid out of public
funds. These law clerks are usually brilliant young graduates of
well known American Universities and they serve the judges for
a year or two. They carry on research, prepare memoranda, discuss the cases to be decided with the judge they serve, and in
many cases they draft opinions or parts of opinions to be
rendered. They participate rather actively in the decision making
process. This is totally unknown to the British or Indian system.
The decisions of the•• appellate courts of America do not seem
to have the same finality as in England or in India. In the United
States re-hearing in a criminal or civil case is not infrequent.
Apart from appeals, decisions of courts are subject to collateral
attacks, including Habeas Corpus, resulting in successive reexamination of single case by courts of co-ordinate jurisdiction.
A final decision in the United States is not beyond challenge in
a subsequent law suit. 11
There is no Court in. France which is comparable to the
Supreme Court of India or of the United States or the British
House of Lords. The common law and the civil law courts are
founded on such divergent concepts that any attempt to draw a
comparison between these courts is bound to be difficult. The
dichotomy adopted in France between private law and public
law runs contrary to the common law concept of a unified
administration of justice. There are two hierarchies of Courts
in France dealing with these two branches of the law. 12 The
regular courts dealing with private law ("droit civil" which includes civil law, criminal law, and commercial law) have a hierarchy of their own of which the Court of Cassation (Cour de
Cassation) is at the apex. This court of last resort consists of a
presiding judge as well as 90 judges, sitting in six divisions of
15 judges each. 9 judges form the quorum. It has civil and criminal jurisdiction. This Court is not analogous to an appellate
See Delmar Karlen, "Appeals in England and the United States"
(1962) 78 L.Q.R. 371-387.
The eminent French jurist Prof. Rene David points out that in France
there is no real distinction between superior courts and inferior
courts, as they are understood in the common law. See: Rene David,
English Law and French Law, The Tagore Law Lectures, pp. 42, 45
(1980).
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COCHIN UNIVERSITY LAW REVIEW
court in the common law system. Apart from the fact that its
jurisdiction is limited to purely private law, even in that domain
it performs a rather restricted role. Prof. Rene David says that
"the Court is a judge over judgments, not over cases."" The
function of this Court is not to substitute its own judgment on
the merits, but to quash the judgment of the lower court which
is found to be defective. "Cassation" is derived from the word
"casser" which means "to break" or "to smash." The Court is
only concerned with law and not the facts. It does not decide
the case, but after quashing the judgment, the case is remanded
for fresh trial to a different court having the same rank as the
court which originally tried it. In the event of a second appeal
the Cour de Cassation will render an authoritative interpretation
of the point of law involved and remand the case to another
court having the same status as the other two courts below for
fresh trial, in which event that court would be bound to follow
the interpretation given by the Cour de Cassation. This is a
rather circuitous and time consuming procedure.
Below the Court of Cassation there is a Court of Appeal
(Court d'appel) to which in certain matters civil and criminal
appeals can be brought from the tribunals of first instance. The
Court of Appeal sitting as a bench of three judges has jurisdiction to review findings of fact as well as law. There are 27
Courts of Appeal sitting in major provincial towns as well as
in Paris. Below the Courts of Appeal, there are tribunals of first
instance (the trial courts) dealing with civil law, commercial
law and criminal law.
The Cour de Cassation has no original jurisdiction. The
procedure of the courts in civil and criminal matters (from the
tribunals of first instance to Cour de Cassation) is basically
written. In the trial courts there is no examination or crossexamination of witnesses by counsel. All questions are put to
the witnesses by the examining judge, except in the extremely
rare cases when, with the special sanction of the judge, questions
may be asked by counsel. Until recently witnesses were not
examined in public. The trial is extremely slow and long drawn
13. Id., p. 46.
T. KOCHU THOMMEN
135
out compared to the procedure in common law. The system
having developed from inquisitorial doctrines, counsel, in comparison to his counterpart in the "common law" system, plays
an insignificant part in the conduct of trial. In criminal cases a
presumption of guilt arises upon completion of the elaborate precommittal proceedings. Referring to this fundamental distinction
between common law and civil law, the eminent French jurist
Prof. Rene David says:
"According to French practice there is no examination-inchief nor cross-examination of the witnesses in Court. All
questions to the witnesses or to the accused are asked
through the intermediary of the presiding judge, and not
directly by counsel. The presiding judge is supposed of
course to be neutral, but in fact he is in many cases convinced beforehand of the guilt of the accused, after a number of his fellow-judges have held proper to commit him
for trial. It is an exertion for him to keep a pretence of
neutrality, . . .. an excessive importance is attached to confession in
French eyes. Confession by the accused is considered in
France as the proof amongst the proofs, . ."14
Droit Administratif and the special courts to administer
it are the innovation of France. Inspired by Montesquieu's theory
of separation of powers, the Law of 16-24 August 1790 declared
under Art. 12:
"Judicial functions are distinct and will always remain separate from administrative functions. Judges in the civil
courts may not, under pain of forfeiture of their offices,
concern themselves in any manner whatsoever with the
operation of the administration, nor shall they call administrators to account before them in respect of the exercise
of their official functions." 15
See Rent David, op. cit., p. 68-69.
As quoted by L. Neville Brown and J. F. Garner in French
Administrative Law, London, 1967, p. 18.
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This was the initial contribution of the revolutionary France to
droit administratif. Napoleon, on assumption of power as First
Consul, realised the imperative need to restrict the power of the
administration which had been released by this Law from the
control of the law courts. He therefore established the Conseil
d' Etat as an instrument to control the administration. This body
commenced functioning on the Christmas day of 1799. The
various developments which took place over the years resulted
in the establishment of a special body called Commission du
Contentieux in 1806 to deal with the judicial work of the Conseil
d'Etat. In 1849 it was renamed as Section du Contentieux. This
"contentious section" has developed into an independent and
able administrative court which has become the pride of droit
administratif. This judicial wing of the Conseil d'Etat consists
of 100 members. It is divided into 9 sub-sections. They share
between them the different categories of cases addressed to the
Conseil d'Etat by the aggrieved citizens. Conseil d'Etat having
original as well as appellate jurisdiction in administrative law
came to be burdened with a heavy load of dockets. By the end
of 1953, 26,000 cases were pending disposal. This slow pace of
administrative justice struck the nation as a virtual denial of
justice. Consequently in 1953 much of its original jurisdiction
was entrusted with administrative tribunals (Tribunaux Administratifs). It is only in exceptional cases jurisdiction is now exercised by the Conseil d'Etat at the first instance. Cases are brought
to the Conseil d'Etat in three ways: (a) at first instance in the
special category of cases withdrawn from the jurisdiction of
administrative tribunals (Tribunaux Administratifs); (b) by way
of appeal (on a point of law or fact) from the administrative
tribunals; and (c) by way of cassation from some other administrative jurisdiction.
Like in the civil courts the procedure before the administrative courts is essentially written, and more so in the latter.
Before the Counseil d'Etat oral argument by counsel is almost
nil. Apart from the preparation of the written briefs, counsel
does not seem to play any significant role before the Conseil
d'Etat. Counsel plays a little more active role in the lower tribunals, but even so it is by no means comparable to the vital
and decisive role of his counter-part in the common law system.
T. KOMI THOMMEN
13i
In this system of judicial administration, inspired by inquisitorial
doctrines, it is unnecessary for a plaintiff who complains of
administrative lapses to engage a counsel, and many of them do
not but are content to leave the whole matter to be investigated
by the Conseil d'Etat• Conseil d'Etat deals with the constitutionality of regulations made by the Government either in exercise of its constitutional right to legislate or as a delegate of the
legislature.16
As a result of the dual system which prohibits the civil
courts and administrative courts from transgressing upon each
other's domain, conflict of jurisdiction often arises between them,
causing inordinate delay in the proceedings. It is to resolve such
conflicts that the tribunal of conflicts (tribunal des conflits) was
established as early as 1848. This tribunal is composed of three
judges from the Cour de Cassation and three judges from the
Conseil d'Etat and presided over by the Minister of Justice.
Proceedings before the tribunal of conflicts resemble, to some
extent, those before the Conseil d'Etat. The procedure is basically
written and the role of counsel is indeed insignificant. Conflicts
may arise either because both the administrative and civil courts
claim jurisdiction (positive conflict) or both disclaim jurisdiction (negative conflict) or because conflicting decisions rendered
by a civil court and an administrative court on the same matter
have resulted in denial of justice.
Until 1958 the French Parliament was supreme in all matters of legislation. Nothing was reserved exclusively for the
Government to regulate by decree. Although the Government
always did enjoy certain powers to issue regulations in the interest of 'public order' without express delegation from the Parliament, there was no restraint on the power of the Parliament
to legislate upon any matter which it chose. All this was changed
in 1958 by the introduction of a diarchy under the new Constitution. Art. 34 of the Constitution of 1958 states: "All statutes
(lois) shall be passed by Parliament" and then gives a limited
list of matters upon which Parliament might legislate. Art. 37
is a residuary provision which says that all matters not listed
16. This question is discussed below.
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in Art. 34 shall be exclusively within the power of the executive
to regulate. Under Art. 38, even in matters reserved for the
Parliament, the Government is entitled to obtain the consent of
the Parliament to legislate by means of ordinances (ordonances)
for a limited period. This means the power of the legislature
under the new Constitution is strictly confined to the closed list
of specified matters outside which the Government have exclusive
jurisdiction to make regulations, not as a delegate of the Parliament, but in exercise of the power conferred by the Constitution.
This constitutional right is in addition to whatever power has
been delegated to the Government under specific statutes. It is
to ensure strict adherence to this division of legislative powers
between Parliament and the Government that the Constitutional
Council (Conseil Constitutionnel) was established in 1958. This
Council is composed of 9 members appointed on a political basis
for 9 years. Every three years the President of the Republic, the
President of the House of Deputies and the President of the
Senate appoint one member each. This Council alone has the
power to declare an Act of Parliament contrary to the Constitution. But such declaration can be made only before the legislation is promulgated. The Constitutional Council decides upon
the constitutionality of statutes (lois) alone. Any statute which
transgresses the list contained under Art. 34 or perhaps violates
the fundamental rights referred to in the Preamble of the Constitution of 1958, viz., the Bill of Rights of 1789, and the Bill
of Rights incorporated in the Constitution of 1946, may become
the subject-matter of investigation by the Constitutional Council
on a reference made to it by the Government. On the other
hand, a regulation (reglement) made by the Government under
Art. 37 or Art. 38 is regarded as an administrative matter and
is always subject to the jurisdiction of the Conseil d'Etat. The
Constitutional Council is not a Court, but an authority empowered to prevent legislative transgression on matters constitutionally assigned to the executive to legislate by Regulations.
Referring to the division of legislative powers between the Parliament and the Government under the new Constitution, Prof.
Rene David observes:17
17. op. cit., p. 75.
T. KOCHU THOMMEN
139
"Parliament has ceased therefore to be all-powerful and to
have a motopoly in the creation of legal rules; and reasonable and practical as it may be, there is no doubt that the
new principle in the French Constitution has its origin in
a desire to curtail the omnipotence of Parliament; . "
The above summary of the judicial powers in the United
States, England and France shows that the Supreme Court of
India is invested with much wider powers and responsibilities
than the final courts of those countries. No court or tribunal in
this country is too low to appeal from to the Supreme Court,
and no subject matter is too insignificant for review by that
Court. Cases also reach the Supreme Court on certificates by
the High Courts. In addition to such appellate power, the
Supreme Court is invested with original jurisdiction. All this is
apart from the power conferred on the Parliament to increase
the jurisdiction of the Supreme Court by specific legislation. No
court in the United States, Britain or France enjoys such wide
jurisdiction. Arrears are not a difficult problem in the House of
Lords and much less in the Privy Council. The total number of
cases instituted in the House of Lords in 1968 was 52, 18 while
the comparative position in the Supreme Court of India during
that year was 13120 and in 1977 it was 14501. 19 The problem
has been rather acute in France, particularly at the level of the
Conseil d'Etat with 26000 cases pending in 1953, but it has
been in a large measure solved by transferring a part of its jurisdiction to the lower tribunals. The problem was thought to be
serious in the United States Supreme Court with 4371 cases in
1972. It is still regarded there as a serious problem, but is in
no way comparable to the number of cases accumulating in the
registries of the Supreme Court and other courts in this country.
The en banc sitting of the U.S. Supreme Court, the written briefs,
the limited oral arguments, the law clerks participating in the
decision making process, and such other peculiarities, including
the dual administration of the Federal and the State laws, 2q make
Blom-Cooper and Drewry, op. cit.
Rajeev Dhavan, op. cit.
See William 0. Douglas, We the Judges (1956), p. 135; Speaking
of the dual system of courts in the United States, Justice Douglas
(f. n. continued)
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COCHIN UNIVERSITY LAW REVIEW
the American system expensive, slow and cumbersome. The
procedure in England in this respect is mucfl cheaper and
speedier. The dichotomy between public law and private law,
which is characteristic of the French system, is alien to the common law, and is stated to be one of the prime causes of delay in
the administration of justice in France and other civil law countries. While counsel plays an extremely important part in the
administration of justice in England, India and the United States,
the restricted argument notwithstanding, his role in the proceedings of the highest courts in France is insignificant, if not in
many cases dispensable.
Unrestricted accumulation of arrears is the negation of due
process. It is in the public interest that immediate steps are taken
to rid the Supreme Court of its excess caseload. The vast jurisdiction conferred on the Court has over the years attracted to
its fold a much heavier load -than it can reasonably bear. The
Court has no time to concentrate on substantial and fundamental
issues, and the litigants find the delay unbearable. Ways have to
be devised to remove a part of this load without affecting the
real power and prestige of the Court. The primary interest of
the Supreme Court has to be limited to matters of fundamental
interest to the nation as a Union of States, being a sovereign,
socialist, secular, democratic republic, dedicated to the concepts
of justice, liberty, equality and fraternity. It is with the application and interpretation of the Constitution and the laws in
enforcement of those fundamental values and precepts, particularly the federal structure and the life and liberty of the
citizens, that the Supreme Court should be principally concerned,
rather than with the multitude of mundane problems of no vital
importance to the integrity of the nation and the welfare of its
people, important as they may be to the parties litigating them.
To this object in view, the Constitution has to be amended. The
data concerning the nature of the workload of the Supreme
Court will throw light on the particular provisions of the Consticalls it "cumbersome, expensive, and productive of delays in the
administration of justice . . . . It has required judicial statesmanship
of a high order to prevent unseemly conflicts between the two judicial systems". (Quoted by C. Herman Pritchett, op. cit., p. 121.)
T. KOCHU THOMMEN
141
tution which require to be amended to prune the Court's jurisdiction to achieve this result.
SUGGESTIONS TO CONTAIN ARREARS
A. Constitutional Amendment:
The Supreme Court commenced its career with arrears. At
the close of the year of its birth in 1950, 771 cases fell in arrears.
In April 1978, the arrears stood at 23,092. I do not have the
exact current figures; but from the trend of growth between 1950
and 1978, the present arrears must be well over 40,000. Of the
23,092 cases pending in April 1978, 10,833 were ordinary civil
appeals, while Special Leave Petitions (civil and criminal) were
only 3,839. The figures are as follows: 21
Ordinary Civil Appeals.
Constitutional Civil Appeals
Ordinary Criminal Appeals
Constitutional Criminal Appeals
Art. 32 petitions for final hearing
Spl. Leave Petitions (Civil)
Spl. Leave Petitions (Criminal)
Art. 32 Petitions for Prel. hearing
Total
10,833
397
1,809
4,608
3,484
355
1,606
23,092
This shows that the bulk of the arrears in April 1978 arose
from appeals under Articles 132 to 134. There were 13,039 of
them, whereas petitions under Articles 32 and 136 together
constituted only 10,053. More than half the dockets reached
the Court despite itself. This apparently was the trend in the
years immediately preceding 1978. However during the same
period the institution of petitions under Articles 32 and 136
had considerably increased. There is a marked trend in that
direction.
21. See Rajeev Dhavan, The Supreme Court Under Strain, N. M.
Tripathi (P) Ltd., Bombay, Statement 22, at p. 133.
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These figures require examination in depth. But what seems
to indicate from a cursory observation of the data is that a good
part of the arrears will disappear if, by a constitutional amendment, Articles 132 to 134-A are deleted and the jurisdiction of
the Supreme Court under Article 136 is confined to judgment,
decree or final order passed by a High Court in a civil, criminal
or other proceeding if in the opinion of the Supreme Court the
case involves a substantial question of law of exceptional importance as to the application or interpretation of the Constitution or any other law and that the question in the national
interest needs to be decided by the Supreme Court or that in a
criminal proceeding the High Court "has on appeal reversed an
order of acquittal of an accused person and sentenced him to
death or has withdrawn for trial before itself any case from any
court subordinate to its authority and has in such trial convicted
the accused person and sentenced him to death". (See Article
134). If such amendments were to be adopted, the Supreme
Court would shed the excess weight gathered through Articles
132 to 134 and the present Article 136. The jurisdiction of the
Supreme Court so pruned and trimmed will then be principally
confined to Article 32 and Article 136 (as amended in the
manner suggested). This means that under Article 136, the
Supreme Court will deal only with appeals coming from the
High Courts, and not any other Court or Tribunal. These appeals
will involve questions relating to the application and interpretation of the Constitution, statutes or any other law, which in the
national interest call for pronouncement by the Supreme Court
so as to achieve uniform development of the law; or, those
relating to the criminal matters specified in clauses (a) and (b)
of Art. 134 as it now stands. This would in effect mean that,
in the absence of a constitutional question, the Supreme Court
would not ordinarily be concerned with any matter falling exclusively under the 'State List.' In other words the Supreme
Court will be concerned only with matters of exceptional importance from the point of view of the smooth functioning of
the Constitution and the rights and privileges of the people as
a nation.
The suggestion, if implemented, will ward off the nonessential load in the future. The Supreme Court will have the
T. KOCHU THOMMEN
143
sole control of the keys to its registry. The High Courts will be
the final authority in all but the exceptional cases. These changes
will not, however, divest the Supreme Court of its substantial
powers. It will continue to be substantially more powerful than
the American Supreme Court in so far as its original jurisdiction
under Arts. 32 and 139 is concerned, and equally powerful in.
matters of appeal. At the same time, the Supreme Court will be
in a position to drop the excess load. In sum, the power and
authority of the Supreme Court under Arts. 32, 131, 135, 137,
138, 139, 139A, 140, 141, 142, 143, 144, 145, 146, 71 and
317 as well as the substantial power under Art. 136 will remain
intact.
B. Circuit Courts:
While jurisdictional changes will prevent accumulation of
arrears in the future, immediate steps are needed to liquidate the
existing arrears. To this end I suggest decentralised disposal of
the pending cases.
I am of the view that a large number of appeals brought to
the Supreme Court can be heard and disposed of at circuit levels
in different parts of the country with considerable saving of time
and money. My suggestion is to establish four circuit courts,
each in one of the four regions of the country, and each exercising the powers of the Supreme Court and composed of one
Supreme Court judge and one or two High Court judges. This
means, four judges of the Supreme Court would go on circuit
among the various High Courts in different parts of the country.
Each of those judges visiting a group of High Courts in a particular region (circuit) will sit with one or two judges of the concerned High Court and deal with appeals pending in the Supreme
Court from that High Court. For example, a judge of the
Supreme Court would, for a specified period—say a few months
—sit in Bangalore or Madras and hear appeals from Kerala
with one or two judges of the Kerala High Court. He would likewise sit with a judge or judges of the Madras or Karnataka or
Andhra Pradesh High Court, as the case may be, and deal with
appeals from that High Court. Alternatively it can be provided
that the bench will consist of, apart from the Supreme Court
judge, a judge of the concerned High Court and another judge
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of any other High Court in the same circuit. A third possibility
is for the Supreme Court judge to sit with two judges of any
High Court in the circuit other than the concerned High Court.
Any such pattern of circuit sitting can be adopted for the four
regions (circuits) of the country; the High Courts for this purpose being grouped into Northern, Southern, Western and Eastern circuits. The number of judges of the Supreme Court going
on circuit at a time and the length of stay of a judge in a particular circuit would depend upon the nature and number of cases
emanating from the respective circuit. It may of course vary
from time to time and circuit to circuit. If filing is comparatively
heavier in a particular circuit, more than one judge of the
Supreme Court can be assigned to that circuit, each sitting separately with High Court judges. In this fashion four or five judges
of the Supreme Court in turn can bring justice to the litigants
at their door-steps instead of forcing them to undertake expensive
journeys to Delhi. This, I believe, has the unique advantage of
obviating the need for setting up permanent benches of the
Supreme Court outside Delhi. The circuit judges, as the expression implies, do not, unlike judges of a permanent bench, reside
at the circuits permanently. They are on circuit for only such
duration as the exigency of the work requires. This has a further
advantage from the point of view of the lawyers. The High Court
advocates who wish to practise at the highest court of the land
need not necessarily migrate to Delhi or undertake expensive
journeys to Delhi for particular cases, but can easily make the
circuits far more economically, quickly and conveniently. If on
the other hand a permanent bench of the Supreme Court were
to be set up in the South, either at Bangalore or Madras, similar
demands are most likely to be pressingly made on behalf of
other regions, and sooner or later, as it often happens, the
Supreme Court will be forced to divide itself into as many
benches as there are regions or sub-regions in the country. Such
fragmentation of the Supreme Court would be a catastrophe.
The great advantage of judges being assigned to circuits
would be that it would not be necessary for more than four or
five judges of the Supreme Court to leave Delhi at a time, for,
each of them would be sitting in one of the circuits with High
Court judges. The judges of the High Court sitting with the
T. KOCHU THOMMEN
145
Supreme Court judge in a circuit would exercise the powers of
the Supreme Court. The rich experience they would thereby gain
would be to the mutual advantage of the Supreme Court and the
High Courts and prepare them the better for higher judicial
roles should they be later chosen for appointment to the Suprethe
Court. There would be nothing revolutionary in adopting such
a procedure, by necessary amendment of the law, for it would
be in perfect accord with the practice of English Courts. 22 The
various levels in the hierarchy of courts in England have never
been watertight. The judges often climb up and down their respective levels to constitute courts. The Divisional Court of the
queen's Bench, for example, is often composed of a Lord Justice
of the Court of Appeal (or the Lord Chief Justice of England)
and a High Court judge. The Criminal Division of the Court of
Appeal is generally composed of the Lord Chief Justice (or a
Lord Justice) and two High Court judges. A High Court judge
is from time to time called upon to sit in the Civil Division of
the Court of Appeal along with the Master of the Rolls and a
Lord Justice. There have been occasions when the Law Lords
have sat in the Court of Appeal and the High Court. The Lord
Chancellor who is the head of the judiciary is the President of
the Court of Appeal and of the Chancery Division of the High
Court as well as Chairman of the House of Lords Appeals Committee. The Lord Chief Justice is the Head of the Criminal Division of the Court of Appeal and of the Queen's Bench Division.
He is a member of the House of Lords. The Courts Act, 1971,
permits the Lord Chancellor to co-opt from time to time Circuit
Judges and Recorders to the High Court. The Supreme Court
consists of the Court of Appeal and the High Court, together
with the Crown Court established by the Courts Act, 1971. The
Crown Court consists of High Court Judges, Circuit Judges and
Recorders. 2 3 Until the position was considerably altered by the
Courts Act, 1971, the High Court Judges in England went
See the Judicature Act, 1873; Administration of Justice Act, 1970;
the Courts Act, 1971.
See The Courts Act, 1971; A. K. R. Kiralfy, The English Legal
System, 6th edn.; P. W. D. Redmond, General Principles of English
Law, 5th edn. revised by J. P. Price and I. N. Stevens; Jackson,
Machinery of Justice in England/ 7th Edn., (1977).
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COCHIN UNIVERSITY LAW REVIEW
regularly on circuits. The U.S. Supreme Court Justices used to
go on circuits. To each of the circuits was assigned a separate
Justice of the Supreme Court of the United States who, together
with a 'district judge,' composed the Court. This practice has
now been given up. 24 The practice of circuit, if adopted in our
country, would, I believe, to a large extent, liquidate pending
cases, for, it will attack arrears at the regional level as well as
at the centre. Cases of greater importance and cases involving
constitutional questions can then be reserved for disposal at
Delhi where the majority of the Supreme Court judges would
always be available at a time. If circuit sitting is adopted, one
or two judges of each High Court would be for a part of the
year engaged in that work. This might call for raising the strength
of the High Courts by one or perhaps two judges each, depending upon the pendency of appeals from a particular High Court.
C. Admission sans oral hearing:
As for the future, apart from the jurisdictional changes
suggested earlier, I am of the view that oral hearing at the stage
of admission should be dispensed with. All petitions requiring
admission will be disposed of by the concerned judges in their
chambers. This will expedite disposal as well as control admission. I am not suggesting that there should be restrictions on
oral arguments at the time of final disposal of the cases selected
for hearing. I believe that counsel should have the freedom to
argue, subject to such restrictions as the judge may in particular
cases want to impose, for as long a time -as is reasonably necessary for the case. This is because our system of judicial administration is geared to oral hearing. To change over to the "written
brief" prevalent in the United States is far too expensive, slow
and impracticable for our conditions. It would be preposterous
to suggest that we should change over to the French system of
proceedings sans oral arguments of counsel. Counsel plays a
vital role in our judicial administration. Arguments at the bar
focus the questions for consideration. Obtuse or abstruse questions on paper assume colour and shape in the hands of an able
counsel. While it is necessary that the decisions of the High
24 See Herman Pritchett, op. cit., pp. 88 et. seq.
T. KOCHU THOMMEN
147
Courts are treated as final, except where the errors are glaring
enough to be sighted without oral arguments, cases which have
been admitted for hearing must be allowed to be presented to
the Court by the parties or their counsel in the most effective
manner. No method is known to be more effective than spoken
words. This implies that while oral hearing plays a vital role in
the final consideration of the case on the merits, the Supreme
Court is not open except to those whose complaints are glaringly
striking on paper, although unaided by spoken words. This must
be so for the exercise of its original as well as appellate jurisdiction. It is a fundamental right of every citizen to approach
the Supreme Court to enforce his fundamental rights. It must
also be seen as a corollary of this fundamental right that the
alleged violation of that right should be strikingly apparent without oral argument, if the complainant seeks to move the Supreme
Court under Art. 32, rather than the High Court under Art. 226.
Unlimited oral hearing has never been regarded as a fundamental right of any citizen in any democracy. Neither the French
nor the United States Constitution, both of which loudly proclaim and champion individual rights, recognises unrestricted
oral hearing. No nation has proclaimed the sovereignty of the
people, their liberty, equality and fraternity, louder than France
has done; no law has declared the rights of man in stronger
language than the Bill of Rights enshrined in the Preamble to
the French Constitution. Yet oral advocacy is almost nonexistent in the Cour de Cassation or Conseil d'Etat where counsel plays an extremely insignificant part in comparison with his
counter-part in England or India or the United States or other
common law countries. Never in the history of the American
nation, for whom individual rights and the rule of law are the
corner-stone of democracy, was it ever thought that the unlimited oral advocacy, which existed in the days of Daniel
Webster, William Pinckney and others who appeared before
Chief Justice Marshall, was not rightly curtailed as arrears began
to grow. Admission by circulation of cases among the judges
would be in perfect accord with the practice of the U.S . Supreme
Court where only 200 out of the 5000 cases instituted are selected for hearing. It would also be in accord with the system
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COCHIN UNIVERSITY LAW REVIEW
prevalent under the civil law in many countries in several
continents.
D. An instrument of national integration
The changes suggested will reduce the workload of the
Supreme Court and strengthen it as an instrument of national
integration. The judges will then have more time to concentrate
on matters of deeper significance.
Judges of the Supreme Court often deal with problems of
the highest national importance. Their decisions have the greatest
impact on the political, social and economic life in our country.
As guardians and protectors of the Constitution and the laws,
they share with the other branches of the Government, a tremendous responsibility requiring not only professional competence
and technical proficiency in their fields of specialisation—be it
public law( such as constitutional law, administrative law, etc.)
or private law—but also the necessary social awareness, economic and political sagacity, perception and judgment of the
highest order. While specialisation in their fields of choke is
highly desirable and beneficial, and probably inevitable, neglect
of other branches of the law or indifference to other faculties
such as history, economics and political science will be the very
negation of that high degree of scholarship and statesmanship
that is expected of them. The traditional distinction between
public law and private law does not any longer exist, particularly
in a welfare State where the Government is omnipotent and
omnipresent in all spheres of human activity. The boundaries
are no longer clear. Even if they were, questions of national importance are not confined to public law alone. While the amendments suggested above will limit the scope of judicial scrutiny
by the Supreme Court to fundamental questions concerning the
Constitution, statutes and other laws, which in the general public
interest require uniform interpretation and application, and thus
project it as a constitutional court concerned with the protection
of constitutional and other legal rights and with the promotion
of national integration, economic recovery and political stability
through the harmonious development of jurisprudence, no artificial jurisdictional distinction is sought to be made on the basis
T. KOCHU THOMMEN
149
of a dichotomy between public law and private law. Such functional classification is not only unreal and impractical in the
changing conditions of a welfare society, but is also an unsound
basis of jurisdiction.
Whether or not some judges are placed permanently on a
constitutional bench, or separate courts are set up exclusively
for public law and private law, such innovation is not very important or even relevant from the point of view of the fundamental problem of containing arrears. The creation of a Constitutional Court and a separate Court of Appeal for other matters
is not likely to reduce arrears. On the other hand it might have
a tendency to increase arrears (apart from expenditure) by reason of multiplicity of courts, and also by reason of the dichotomy
and the consequential conflicts which are likely to arise as regards
the identity of the competent court. The division of cases for
the purpose of jurisdiction into constitutional and other matters
can be extremely difficult, vexatious and time-consuming, as is
in fact the position in the French system where conflicts often
arise on account of the dichotomy between droit administratif
and droit civil as regards the competing jurisdiction of the Cour
de Cassation and the Conseil d'Etat, leading to time-consuming
proceedings before the Tribunal des Conflits for the settlement
of such disputes. 25 Like frictions of jurisdictional conflicts arise
from time to time in the United States between State Courts and
Federal Courts. 26 All this would mean delay and more arrears.
If arrears are the main threat to the future of our courts, as I
believe they are, arrears must be tackled by striking at the roots.
This, I believe, can best be done in the manner suggested above.
At the time of the making of the constitution much thought
was not bestowed on the question of arrears in the future. 27 The
meagre number of dockets which the Federal Court attracted to
itself did not alert the founding fathers of the Constitution to
See, L. Neville Brown and J. F. Garner, op. cit.
See, Herman Pritchett, op. cit., p. 117. The 'same appears to be the
position in Australia. See [198111 W.L.R. •193 (P.C.); [1971] 124
C.L.R. 367.
See, Siva Rao, The Framing of Indian Constitution, Vols. I to IV.
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this danger. The smooth functioning of the Privy Council, despite the wide jurisdiction over vast arears which it once enjoyed,
and the comparatively light work handled by the House of Lords
could not have cautioned them as to what was to come in the
future. Now is the time to remedy what they could not foresee,
but what in the three decades since then has become a frightening reality thwarting the wheels of justice.
The High Courts and Other Courts
There is no time or space to deal with the High Courts and
the Subordinate courts in this paper, although the problem of
arrears is indeed acute in those courts, and speedy remedial measures are called for. 28 However I shall briefly draw an outline of
the changes I envisage in these courts.
With the exception of summary cases (civil and criminal),
all other cases will originate in the Courts of the Subordinate
Judges, and District and Sessions Judges, depending on the subject matter. There will be one appeal to the High Court, as a
matter of right, on question of law and facts. The Magistrates
and Munsifs will be invested with criminal and civil jurisdiction
in petty offences and small cause cases which will be tried
summarily and those decisions will be final and not appealable.
Appeals from Tribunals
I am of the view that appeals should lie as of right to the
High Court from the decisions of administrative tribunals on
questions of law. With the amendment of Art. 136. as suggested
above, the Supreme Court will have lost its jurisdiction to grant
special leave to appeal from the decision of any tribunal or court
other than the High Court. It would therefore be necessary to
connect these tribunals with the High Court on questions of law
so that they form an integral part of the machinery of justice.
The tribunal will be the final authority on facts.
28. On 31-12-1977 there were 6,07,918 cases pending in the 18 High
Courts: See the 79th Report of the Law Commission of India dated
May 10, 1979.
T. KOCHU THOMMEN
151
The administrative tribunals are an unavoidable, and in
many ways a desirable, phenomenon of the welfare State. They
are the inevitable consequence of the projection of the State's
administrative machinery into the private life of the citizen. What
was once the exclusive domain of private law is today controlled
and regulated in many aspects by the State and its instrumentalities. Administrative Tribunals have come to be recognised as a
specialised and effective instrument for the resolution of disputes
which inevitably arise between the administrators and the persons affected by their actions. The word 'Tribunal' is of French
origin meaning 'Court of Justice' or 'judicial authority.' All the
French courts of first instance—whether civil or administrative—
are called Tribunals. h is from these courts that the expression
came to be borrowed in England to describe their administrative
courts as distinct from the regular courts. In France the administrative tribunals are as much courts as are the civil tribunals in
their independence and objectivity. They belong to separate
hierarchies, but apply almost identical techniques in the determination of the facts and the application of the law.
"Administrative" is an inapposite adjective to qualify these
Tribunals; for they are not part of or manned or controlled by
the administration and are not concerned with administrative
policies, but only with the determination of the relevant facts and
the application of the relevant law, with reference to which they
make judicial decisions. Insulated from executive control, these
tribunals are statutorily charged with the responsibility of dispensing justice according to law. They are 'administrative' tribunals only in the sense that they specialise in administrative law
and matters. Their familiarity with the specialised nature of their
work and their less formal procedure are their strength. Their
strict compliance with the statutory provisions and the cardinal
principles of law—such as acting within jurisdiction, the rules
of natural justice, the requirement of their order being reasonably
supported by evidence, the principle of eschewing irrelevant matters and taking into account relevant matters, and like norms—
is an essential and inescapable requirement. These judicialised
tribunals must function, not in opposition to, but in harmony
with, the High Courts. They are indeed an integral part of the
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machinery of justice. These well accepted general principles must
be borne in mind when we deal with Tribunals.29
I am of the view that all administrative tribunals should be
manned by men who are trained in the law and have experience
in the administration of justice. Their independence, skill and
impartiality are best guaranteed by their selection and deputation
by the High Courts from among judicial officers for appointment
by the Government. Given the necessary training in the special
features and requirements of Administrative law, the District
Judges and Subordinate Judges selected and deputed by the High
Courts should make excellent Tribunals. The judicial and supervisory control of these tribunals by the High Courts guarantees
their independence, impartiality, and the uniform development
of administrative law, which, as in France and elsewhere, is
almost exclusively judge made law. The glory of administrative
law, as developed in France, the United States, and in Britain
(since the Tribunals and Inquiries Acts of 1958 and 1971) has
been the Tribunal's sturdy independence of Government control
or influence.
Article 323-A of the Constitution authorises the Parliament
to establish Service Tribunals for the Union and the States, and
to "exclude the jurisdiction of all courts, except the jurisdiction
of the Supreme Court under Art. 136, with respect to the disputes or complaints referred to in clause (1 )." 30 Similarly, Art.
323-B authorises the appropriate legislature to set up Tribunals
for the adjudication or trial of various matters, such as tax,
labour etc., and to exclude the jurisdiction of all courts, except
the jurisdiction of the Supreme Court under Art. 136 with respect to those matters. 3 ' As a result of these two constitutional
provisions, the Central and State legislatures have become competent to sever these tribunals completely from the High Courts,
and subject to Art. 1 36, from the Supreme Court as well. If
See, H. W. R. Wade, Administrative Law, 4th ed. pp. 738 et seq.;
Bernard Schwartz and H.W.R. Wade, Legal Control of Government;
Rene David, op.' cit., Jackson, The Machinery of Justice, 7th ed.
See, Clause 2(d ) .
See, Clause 3 (d).
T. KOCHU THOMMEN 1-53
Owe provisions were to be implemented, Arts. 226 and 32 might
bixonie inoperative against these Tribunals, and the High Court
would net have even appellate jurisdiction over them. Any person aggrieved by the decision of any one of such Tribunals would
have no relief except by recourse to Art. 136. This would
indeed be unwise for several reasons.
It would deluge the Supreme Court with work if Art. 136
remains in the present form. On 1st January 1983, 33,285 cases
were pending in the Kerala High Court out of which 12,413
were writ petitions. I do not have the current figures about the
other High Courts; but in December 1977, 1,34,639 writ peti,tions were pending in the various High Courts. 32 It is quite likely
that the arrears have increased since then. It is probable that
a bulk of these cases would fall within the purview of the tribunals contemplated under Arts. 323-A and 323-B. If these tribunals were to be set up with the jurisdiction of the civil courts
ousted, as authorised by the Constitution, the decisions of the
Tribunals in most cases are likely to be challenged in the
Supreme Court under Art. 136. That will lead to a tremendous
addition to the existing load of over 40,000 cases. If, on the
other hand, Art. 136 were to be amended, as suggested earlier,
and the ouster clauses were to be enacted by the legislatures,
there would be no civil courts, except the Supreme Court in the
most exceptional cases, to control and regulate the decisions of
the tribunals on law. In such state of affairs, being independent
of both the Government and the High Court, and not having a
supreme administrative court, like the Consel d'Etat, the Tribunals would become a law unto themselves. It would lead to
divergent interpretations of the law and retard the growth of
administrative jurisprudence in this country. Any such trend in
the long run would be contrary to the interest of the administration itself. It is possible that legislatures may set up hierarchies
of tribunals, but such appellate tribunals would cause further
delay in the final disposal of cases, and the litigant would not
have the satisfaction of having had his day in a civil court on a
question of law. The appellate tribunal is most unlikely to command the same prestige, respect and public confidence as the
32. 7th ,Report of the Law Commission of India, op. cit., p. 61.
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High Court does, unless it is manned by sitting High Court
judges, as in the case of certain appellate tribunals in England."
There would be no great difficulty in setting up appellate tribunals manned by sitting judges of the High Court; but I should
have thought that it would be much less complicated to provide
for appeals to the High Courts, and for the High Courts to constitute administrative benches of specialist judges, particularly in
matters like taxes and service.
It is important to remember that administrative tribunals
are not well known for speedy disposal of cases. In fact they
are in many cases slower than civil courts. This has been the
position in France and several other countries. Our experience
with Tribunals in this country has not been any better. Specialised knowledge is of course their strength, but speed has somehow eluded them. This is probably because any judicial body
has to move with caution and care. But then, can it be said that
non-judicial bodies move with greater speed? If speed is what
we are looking for, administrative tribunals are not the answer.
I would therefore suggest the deletion of the ouster clauses—
namely sub-clause (d) of clause (2) of Art. 323-A and subclause (d) of clause (3) of Art. 323-B. If the deletion of these
ouster clauses were to be unattainable, and if the constitutional
power under these two Articles were to be invoked by the Legislatures, one can only hope that they would in their wisdom
establish appellate tribunals manned by sitting judges of the
High Courts.
Whatever be the mode of the Tribunals—whether they are
set up under statutes of Parliament or of the State legislature,
or whether there is a single tribunal or a hierarchy of tribunals
—they should, in my view, be judicially controlled by the High
Court. Such control will save the litigant a great deal of time,
money and anxiety. The conduct of his case will be much easier,
for he will have much closer contact with his lawyer. For an
ordinary person like a labourer or a shop assistant or a teacher
or a lower division clerk or a police constable—these are typical
33. See, Jackson, The Machinery of Justice in England, 7th ed.
T. KOCHU THOMMEN
155
of the persons who generally approach the High Court under
Art. 226--his local High Court is so much more accessible and
commands so much more confidence than a distant appellate
tribunal or court located outside his State. Lacking in funds and
experience with men and matters outside his State, where even
the local language is probably unfamiliar to him, he is ever so
disadvantageously placed in comparison to his more powerful
opponent. A further appeal to the Supreme Court is far beyond
his means, and completely out of his control. He would be content with a final decision at the High Court level rather than be
forced to go to the Supreme Court owing to a powerful and
rich opponent. The interests of the poorer litigants of this country
are better served by the Supreme Court shutting its doors to
all but the most exceptional cases.
Appeals to the High Court from the Tribunals' decisions
on questions of law will immediately release the pressure on
Art. 226. This is in fact already the case in matters such as Tax,
Workmen's Compensation, Land Reforms (as in Kerala) etc.,
where effective alternative remedies by way of appeal or revision or reference to the High Court are provided. The fact that
not more than 203 petitions for prerogative writs or orders per
'year reach the English High Court where appeals are regularly
brought from various administrative tribunals is a striking pointer
'to be taken note of. 34 The large number of Writ petitions pending
in the Karnataka High Court in land reforins matters, where no
appeal or revision is provided to the High Court from the decision of the administrative authority, is a clear example of pressure being excessively brought to bear on the Writ jurisdiction
of the High Court in the absence of an efficacious alternative
'remedy. The just and appropriate answer to a citizen's complaint
against administrative lapses and excesses is not to avoid the
High Court, but to confer upon it appellate jurisdiction on law,
so that the extraordinary powers under Art. 226 will not have
to be invoked except in the most exceptional cases demanding
immediate and peremptory judicial intervention. In such exceptional situations, Art. 226 is the most effective remedy that the
Constitution has devised.
34. Jackson, op. cit., p. 42.
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The jurisdiction of the High Court over the Tribunals will
ensure uniform construction of the legal rules and healthy development of jurisprudence. This will avoid the delay, the excess
cost, conflict of jurisdiction and conflicting decisions which are
characteristic of a dual system of judicial administration. In a
large country like ours with so many dissimilarities and so much
divergence, the High Courts, constituted as they are, have been
a very effective unifying and integrating force. Further appeals
from the High Courts to the Supreme Court, strictly limited to
the most exceptional cases requiring uniform interpretation of
the Constitution and statutes, will strengthen the forces of national integration without imposing an undue burden on the
poorer litigants or adding appreciably to the workload of the
Supreme Court.
In Britain, as a result of the proliferation of the Tribunals
and the resultant lack of proper supervision over them, leading
to strong public criticism, and on the basis of the Franks Committee's recommendations which were followed by the Tribunals
and Enquiries Acts of 1958 and 1971, most Tribunals have been
brought under the appellate and supervisory control of the High
Court. The trend in that country in the recent years has been
to impose strict control over the Tribunals by the High Court.
This is necessary to promote uniform development of the law
on the basis of well accepted norms. This has been the consistent
practice of the United States where the decisions of the administrative agencies are subject to review by the civil courts. 35 It is
also the practice in Spain where the administrative courts are
controlled by .the civil court of last resort. 36 In the absence of a
separate hierarchy of administrative tribunals presided over by
a supreme administrative court as the Conseil d'Etat—a dichotomy which developed in France owing to the peculiar and unavoidable historical developments in that country and totally
unsuited for transplantation in the common law—judicial and
supervisory control of the tribunals by the High Court is a constitutional necessity to preserve and promote jurisprudential
See, Bernard Schwartz and H. W. R. Wade, op. cit.
Rene David, op. cit.
T. KOCHU THOMMEN
157
integrity and unbiased dispensation of administrative justice. To
shift this burden to the Supreme Court is to overtax that court
at the cost of its efficiency and to make the administration of
justice far more expensive for the common man than it would
be if the High Court were accepted as the final court in all but
the most exceptional cases.
CONCLUSION
The jurisdiction of the Supreme Court is so wide that
arrears are unavoidable. The court of last resort must be the
exclusive preserve of the most exceptional cases.
Jurisdictional changes must be made by appropriate
constitutional amendments so as to delete Arts. 132 to 134-A,
and to restrict the ambit of Art. 136 to exclude all but the most
exceptional cases involving substantial questions concerning the
Constitution and other laws.
Resort to decentralised disposal of pending appeals
by circuit courts is necessary.
Oral arguments at the time of admission must be
dispensed with.
The suggested amendments will make the Supreme
Court a Constitutional Court in the true sense, i.e., a Court
concerned only with substantial questions of exceptional national
importance relating to the Constitution and other laws. In all
other matters the High Court will be the final court.
The subordinate courts and the District and Sessions
Courts will have unlimited jurisdiction in matters allotted to
them, with the exception of Small Cause Cases and petty crimes
which will be within the respective jurisdiction of the Munsifs
and Magistrates whose decisions will be final and non-appealable.
(7) There will be one appeal as of right to the High
Court from the Subordinate courts, District Courts and Sessions
Courts on questions of law and facts.
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9 sa3
There will be appeals as of right to the High Court
on law from the decisions of all Tribunals in matters coming
within the jurisdiction of the High Court under Art. 226.
Sub-clause (d) of clause (2) of Art. 323-A and subclause (d) of clause (3) of Art. 323-B of the Constitution must
be deleted.